Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Tag: Supreme Court

The Supreme Court’s term is over, with 75 cases having been argued and decided. It’s safe to say that the most significant ones were those decided this week, on the politically fraught subjects of affirmative action, the Voting Rights Act and gay marriage. I’m extremely proud that Cato was on the winning side of each of these issues. In fact, we were the only organization to file briefs supporting the challengers on each one (Fisher v. UT-Austin, Shelby County v. Holder, Windsor v. United States & Perry v. Hollingsworth).

That says a lot. Not that the Supreme Court always takes its guidance from us – would that it were so! – but that we’re consistent in embracing the Constitution’s structural and rights-based protections for individual freedom and self-governance. It’s gratifying that the Supreme Court saw it our way in those “big” cases, even if Fisher was an extremely narrow decision and the others were all 5-4.

But that’s not all. After finishing my commentary on Windsor and Perry last night, I was curious to see how we did overall, beyond the high-profile cases. It turns out that we went 15-3 on the year. That is, looking purely at briefs we filed on the merits – you can see our record on briefs supporting cert petitions here – the Supreme Court ruled our way 15 times and against us three (and I can assure you that we don’t pick cases strategically to inflate our winning percentage. (I don’t count Perry in either column, by the way. While we ended up with a favorable result, Prop 8 struck down, the Court decided the case on standing grounds, incorrectly in my view).

Again, I’m not claiming that the Court was heavily influenced by briefs with Cato’s (or my) name on them – there’s just no way to know, and even briefs that are cited may be less influential than others – but many, many of these decisions track our thinking. That’s also gratifying, regardless of how the justices reached their conclusions.

For the record, here’s the list of cases in which we filed this term (in order of argument):

Losing side (3): City of Arlington v. FCC, Salinas v. Texas, United States v. Kebodeaux

My colleague Walter Olson has already compared our record to the greatest sports teams of all time, as well as what I consider to be the most dominate year by a baseball player, Sandy Koufax in 1963 (who went 25-5 and was the regular season and World Series MVP). I just wish that The Man With the Golden Arm could have had as long a career as Cato’s amicus brief program.

Today, in Adoptive Couple v. Baby Girl, the Supreme Court dodged the constitutional flaws of the Indian Child Welfare Act, instead choosing to rely on statutory interpretation to reverse a lower court’s troubling decision. The very first sentence of Justice Alito’s majority opinion hints at one of the underlying constitutional difficulties with ICWA, its assignment of family-law entitlements by race: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Justice Thomas’s important concurrence points to another reason to doubt the statute’s constitutionality—its ouster of state courts from their traditional supremacy in family law, based on sources of federal authority (such as the Indian Commerce Clause) that have never been recognized as supporting such ouster.

Justice Sotomayor’s dissent has some force in arguing that the majority is departing from the most natural reading of ICWA’s text, as well as Congress’s likely intent, and in particular that it may be casting doubt on some rights of biological, noncustodial Indian fathers that Congress may have intended the law to protect. As Justice Thomas rightly argues, however, today’s ruling makes sense in light of the doctrine of constitutional avoidance, in which the Court construes doubtful laws so as to avoid possible unconstitutionality. Eventually, if not in this case, ICWA’s constitutional difficulties will be back before the Court in a form it can’t evade. My April coverage of the case in Reason is here; background at SCOTUSBlog, Overlawyered, and RadioLab.

In striking down Section 4 of the Voting Rights Act, the Supreme Court restored a measure of constitutional order to America. Based on 40-year-old data showing racial disparities in voting that no longer exist, this provision subjected a now-random assortment of states and localities to onerous burdens and unusual federal oversight. Recognizing that the nation has changed, the Court aptly ended the extraordinary intrusion in state sovereignty that can no longer be justified by the facts on the ground.

“If Congress had started from scratch,” Chief Justice Roberts wrote for the majority, “it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way.” And so this law must fall.

Of course, the Court really should’ve gone further, as Justice Thomas pointed out in a concurring opinion. The Court’s explanation of Section 4’s anachronism applies equally to Section 5. In practice, however, Congress will be hard-pressed to enact any new coverage formula because the pervasive, systemic discrimination in voting that justified such an exceptional intrusion into the normal constitutional order is now gone.

And that’s a good thing. Today’s ruling underlines, belatedly, that Jim Crow is dead.

Last week, a New Hampshire trial court declared that the state’s nascent scholarship tax credit (STC) program could not fund students attending religious schools. The Granite State’s STC program grants tax credits to corporations worth 85 percent of their contributions to nonprofit scholarship organizations that aid low- and middle-income students attending the schools of their choice.

Writing on the Washington Post’sAnswer Sheet blog, Professor Kevin Welner of the University of Colorado at Boulder mocked supporters of the program who criticized the decision. Welner argues that school choice advocates should have expected this decision, declaring that it was “unsurprising” that the court should find the program (partially) unconstitutional. But what Welner calls unsurprising is actually unprecedented.

Only toward the bottom of his post does Welner reveal that the only high courts to address the issue thus far—the U.S. Supreme Court and the Arizona supreme court—have ruled STC programs constitutional in their entirety. Indeed, though all but two of the remaining ten states with STC programs have similar “Blaine Amendment” provisions in their state constitutions, opponents haven’t even bothered to challenge their constitutionality. Additionally, other state courts have ruled on the question of whether tax credits constitute “public money” in a manner consistent with the previous STC cases, demonstrating that the courts’ rulings were not the aberrations that Welner imagines them to be.

If school choice supporters had a reason not to be surprised, it was because the ACLU and Americans United for Separation of Church and State shrewdly went judge shopping. That’s why they brought their lawsuit in Strafford County instead of Merrimack County, where the state capital is located. Their strategy seemed to pay off, as the judge’s decision relies heavily on the dissenting opinions in the U.S. Supreme Court and Arizona supreme court decisions, and misapplies the limited precedent from New Hampshire. Nevertheless, the final decision rests with the New Hampshire supreme court. As I detail below, logic and precedent suggest that they should overturn the lower court’s decision.

Despite its awkward name and somewhat technical details, AID v. AOSI provided the Supreme Court with an opportunity to make a very simple point: The federal government can’t force its contractors – whether they’re corporations (as in this case) or individuals – to promote policies that are unrelated to the program for which they receive federal funds. The Court correctly ruled that executing a program to combat HIV/AIDS is unrelated to advocating for or against the legalization of prostitution. One can imagine other instances: Treating drug abuse has little to do with one’s views on drug legalization. Running an adoption agency can be done whether one is pro-choice or pro-life. Missiles can be built regardless of whether the contractor favors a particular foreign policy stance.

As Cato argued in its amicus brief, such “policy requirements” significantly burden political speech, the constitutional protection of which lies at the very heart of the First Amendment. Had the government’s position been accepted, it would eviscerate the “unconstitutional conditions” doctrine, which the Supreme Court has long recognized to prevent the conditioning of generally available federal benefits on the waiver of fundamental rights. The Court has never given Congress carte blanche to give contractors Hobson’s Choices, whether relating to the freedom of speech or other constitutional rights. Today it thus strengthened the principle that Congress’s power to condition funding is limited to ensuring that its funds are used to properly implement the program that Congress wishes to fund, not to compel private organizations to adopt express “policies” that don’t relate to the use of those federal funds.

Remember Bond v. United States, that typical story of adultery, federalism, and chemical weapons? Cato has actually filed four briefs in Bond, most recently last month, the last three making the point that the president can’t expand federal constitutional powers simply by signing a treaty.

Our arguments are based on a 2005 law review article by Georgetown law professor (and Cato senior fellow) Nicholas Quinn Rosenkranz, the primary author of these last three briefs. It’s certainly unusual for a law review article to play a pivotal role in a Supreme Court case, but, as those following Bond know, there’s little “usual” about this case.

Maybe that’s why the national media is starting to pay attention to our attempt to get the Supreme Court to be faithful to this particular corner of the Constitution: last week, the National Law Journal declared our Bond filing its “brief of the week.”

For more on this case, and our arguments, watch the lunch panel we had on Friday, featuring Nick Rosenkranz and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court will hear oral argument in Bond in October.

Yet again the unanimous Supreme Court has slapped down a government attempt to deprive property owners of their civil rights. What was at stake in Horne v. Dept. of Agriculture wasn’t even the property – raisins! – but the mere ability to challenge the government’s desire to take that property without meaningful judicial review.

Nobody should have to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that’s exactly what the U.S. Department of Agriculture sought to impose on raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the Hornes turn over 47% of their crop without compensation.

These New Deal-era regulations are bad enough – forcing raisin “handlers” to turn over some of their crop to the government so it can control raisin supply and price – but here the government kept throwing up obstacles to the Hornes’ attempts to assert that they shouldn’t legally be subject to them. The government demanded about $650,000 from the Hornes and didn’t want to give them a day in court until they paid the money and jumped through assorted administrative hoops.

The Supreme Court correctly rejected that absurd position and reversed the California-based U.S. Court of Appeals for the Ninth Circuit that upheld it, reinforcing the line drawn by five other circuit courts. “In the case of an administrative enforcement proceeding,” Justice Thomas wrote on all his colleagues’ behalf, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another.”

Indeed, there’s no reason to treat Fifth Amendment takings claims any differently than lawsuits against government violations of other constitutional provisions.